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2012 DIGILAW 223 (JHR)

Joseph Ekka v. State of Jharkhand

2012-02-13

D.N.UPADHYAY

body2012
ORDER By the Court.-This criminal writ petition has been filed by the petitioner with a prayer for setting aside the order dated 10.9.2010 passed by the learned CJM, Latehar in C.R. No. 591 of 2009 arising out of Mahuatanr PS Case No. 36 of 2009. It is further prayed that unless petitioner is not remanded in that particular case, he would not be able to me bail application or the case will not proceed ahead. 2. At present, the petitioner is lodged in Gumla Jail in connection with Dumri Police Station Case No. 48 of 2009 in which case, he has been granted bail, but only on the strength of production warrant issued in connection with Mahuatanr P.S. Case No. 36 of 2009, he has been detained in custody. 3. Learned counsel for the State has opposed the prayer. 4. I have perused the order dated 19.01.2010 and 10.9.2010 passed by the learned CJM in connection with C.R No. 591 of 2009. Only on the basis of production warrant, a person cannot be detained in custody and he is required to be produced before the court concerned at the earliest opportunity available, so that the case in which his appearance is required may proceed further. 5. Order dated 19.01.2010 indicates clearly that concerned Investigating Officer of Mahuatanr P.S. Case No. 36 of 2009 has filed requisition for remand of the petitioner in this case and the learned CJM has been please to allow the prayer and has sent the production warrant to Gumla Sub Jail. Grounds stated by the CJM based on the submissions of the learned APP do not appear to be correct, because the Investigating Officer himself has med the requisition for remand of the petitioner in that particular Mahuatanr P.S. Case No. 36 of 2009. The petitioner also does not deny his identity-being that of Joseph Ekka, son of Johan Ekka. 6. Now the question arises when a person is remanded to judicial custody by any Magistrate in connection with any case, and his appearance is required in other case pending in another district, whether his physical appearance for his first remand in that case is case essential? 6. Now the question arises when a person is remanded to judicial custody by any Magistrate in connection with any case, and his appearance is required in other case pending in another district, whether his physical appearance for his first remand in that case is case essential? In this context, recent amendment in the provision of Section 167(2)(b) of the Code of Criminal Procedure, which has been given effect from 31.12.2009, is as follows; 'No' Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage." It is also desirable to read Section 167(2)(b) as it was before the above amendment which is as under : "167(2)(b). "No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him." The amendment as aforesaid in Section 167(2) (b) has given power to the Magistrate to authorise the detention of an accused firstly in custody of the Police with the mandate that the accused must be produced before the Magistrate in person for the first time and subsequently every time till the accused remains in the custody of Police. Secondly, the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage. Therefore, to authorise further detention of an accused in judicial custody, the Magistrate has been given option to do it, through the medium of video linkage. Thus, it reveals that the amendment by which the Magistrate has been given option to extend the period of detention through video linkage is mainly for the purpose and object to avoid unnecessary use of police escort for producing the accused in every fortnight which may not be available on various occasion for various reason and also with an. intent to legalise the detention of an accused during investigation without any delay. The use of electronic video linkage has also been given legal effect by amendment in Cr. intent to legalise the detention of an accused during investigation without any delay. The use of electronic video linkage has also been given legal effect by amendment in Cr. P.C., Evidence Act and other relevant provision of other procedural laws with an intention to speed up the trial and to avoid unnecessary delay. 7. Now coming to the facts and circumstances appearing in the Case at hand. It is not disputed that the accused is in judicial custody in District Sub Jail at Gumla in a criminal case and his appearance is required in Mahuatanr P.S. Case No. 36 of 2009 at Latehar for which the Investigating Officer has filed petition to issue production warrant and the same was allowed by the learned CJM, Latehar vide order dated 19.1.2010. The Investigating Officer has not requested the Court for detention of the accused in the police custody, rather, he has requested the court for remand of the accused in case pending at Latehar in which appearance of the accused is required. If that being so, there will be two options; first; that the accused person whose remand is required in connection with another case in another district should be produced under proper escort before the concerned court or he may be remanded through electronic video linkage in that particular case, but in no case, the said accused will be handed over to the Investigating Officer for producing him before the concerned court in which his appearance is required. Furthermore, the purpose of the aforesaid amendment which has been given effect to speed up trial by using electronic device, shall be frustrated if it is not properly applied with. Therefore, I feel that if a person who is in judicial custody in connection with any case can be remanded in another case in which his appearance is required in another district through electronic video linkage for further progress of that particular case. 8. With the above discussions, it is directed, either the S.P. Gumla, should provide proper escort for production of petitioner in connection with Mahuatanr P.S. Case No. 36 of 2009 before the learned CJM Latehar, or the CJM concerned Shall take appropriate steps to get the petitioner remanded in connection With Mahuatanr P.S. Case No. 36 of 2009 through electronic video linkage. With the above observations and directions, this writ petition is allowed and the impugned order dated 10.9.2010 is set aside. Petition allowed.